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The fate of Garth Drabinsky’s membership in the Order of Canada now lies in the hands of a federal court judge.

Drabinsky earned Canada’s highest honour in 1995 for being a risk-taking entrepreneur who revolutionized the Canadian theatre industry.

He was stripped of the medal and pin last November while serving a five-year sentence for two fraud convictions.

In federal court Tuesday, Drabinsky’s lawyer, John Koch, argued that the Governor General’s decision, made on a recommendation from an advisory council, was unlawful and should be quashed.

“It is clear the advisory council did not do what it was required to do,” said Koch.

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But the lawyer representing the advisory council said there is nothing the courts can do now.

The council is responsible for nominating members to the Order of Canada and occasionally recommends that the honour be taken away.

Once the Governor General makes the decision, due to an executive power known as “honours prerogative,” the courts have no authority, said Christine Mohr, lawyer for the advisory council.

Drabinsky could have asked for a judicial review prior to the Governor General signing the removal order, like Conrad Black did, Mohr said. But now it’s too late since the courts have no authority over granting or removing honours, she said.

The decisions are based on social, moral and political concerns, and have no bearing on legal rights, she said.

“No one has a right or entitlement to an honour,” she said.

Many of the arguments made by both lawyers referred to judgments in Conrad Black’s fight to keep his Order of Canada by making submissions to the council in an oral hearing. The request was rejected by the federal court last October.

Black was scheduled to appeal the decision in September, but it has been postponed to a date not yet set.

Drabinsky — who got out on day parole in February but was not present in court — learned that his Order of Canada was being considered for removal the previous June. A member of the public had written to the council to say Drabinsky’s fraud convictions stemming from the bankruptcy of Livent Inc., a company he owned with partner Myron Gottlieb, undermined the order.

But, his lawyer argued Tuesday, while in a minimum-security prison without access to the Internet, a research library and his archives, Drabinsky was unable to provide the relevant facts to the council to make his case.

Drabinsky asked for an extension until he could be granted day parole. It would have meant missing only one meeting of the council, said Koch.

The council only granted him a one-month extension.

Before that deadline Drabinsky sent in a preliminary letter, copies of more than 50 letters of support obtained for his sentencing and parole hearings, and a copy of his autobiography Closer to the Sun.

“The Order of Canada is not an award for ‘good behaviour’ but for significant contributions to Canada,” he wrote in his letter to the panel.

“To revoke my appointment would make a mockery of a unique body of work and diminish its value to Canadians and the world.”

The letter also contained an implied request for an extension until he could be out on parole, said Koch.

Mohr said the letter contained no such request and so no further extension was granted.

In any case, she said, the council is not legally obligated to grant extensions.

However, without Drabinsky’s full submissions, Koch said, the council made its recommendation to the Governor General without “all the relevant facts.”

The council also did not make clear in its report to the Governor General that it found it did not need the additional information Drabinsky wanted to provide, Koch argued.

Therefore, he argued, the council “misadvised” the Governor General, who signed the order the same day despite being provided 350 pages in documentation and an autobiography.

Koch also noted that Drabinsky was only informed he was no longer a member of the Order of Canada in February, months after the “ordinance of termination” was signed.

He did not have a chance to see the council’s recommendations before the final decision and instruct his lawyer to launch judicial review proceedings at that time, said Koch.

Mohr argued the process was fair, and that the large and detailed volume of materials submitted by Drabinsky was thoroughly examined.

As Drabinsky awaits the federal court decision, he faces other battles.

The Law Society of Upper Canada has launched proceedings against Drabinsky for “conduct unbecoming to a licensee” that may result in the loss of his licence. Called to the bar in 1975, he has already agreed not to practise.

The Ontario Securities Commission is also reopening its regulatory case against Drabinsky, Gottlieb and a third Livent executive, Gordon Eckstein.

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